Implementing Blakely

Abstract

By declaring that sentence-enhancing facts must be proven to a jury beyond a reasonable doubt, the Supreme Court in Blakely v. Washington has raised a number of questions about the future of guided sentencing. One of these questions - only beginning to be explored - is what procedures would be needed in a system that both implements Blakely and preserves sentencing guidelines. What factors would be submitted to the jury and what instructions would be given? Would sentencing issues be presented to the jury in a separate hearing, distinct from trial? If so, what evidentiary rules would apply?

This paper offers some initial answers to these practical questions and then comments briefly on the model of the jury advanced by Blakely. Blakely points to an understanding of the jury principally as a factfinder and a procedural safeguard of defendants' rights. A more complete endorsement of the jury would provide an even broader place for the jury's distinctive democratic and deliberative features. The most interesting consequence of Blakely could come about if it prompted more states or the federal system to move toward the systems of the six states where full jury sentencing exists, while at the same time preserving a place for simplified or advisory guidelines.

Keywords: Blakely, sentencing guidelines, sentencing, criminal procedure, jury, Sixth Amendment, Apprendi, Booker, Fanfan

JEL Classification: K14, K42